890 F.

2d 279

Scott Furman MAXEY, a Minor, by his mother & next friend,

Dianna MAXEY, Plaintiff-Appellee,
v.
Robert FULTON, individually; Julia Teska, individually;
Harold E. Goldman, individually; Heriberto Martinez,
individually; John Dentist, individually; John Doctor,
individually; Jane Doctor, individually, Defendants,
and
James Borren, individually, Defendant-Appellant.
Joseph Donald COLE, by his mother & next friend, Virginia
COLE, Plaintiff-Appellee,
v.
Robert FULTON, individually; Julia Teska, individually;
Harold E. Goldman, individually; Luis A. Reinoso,
individually; John Doctor, individually; Jane Doctor,
individually; John Dentist, individually, Defendants,
and
James Borren, individually, Defendant-Appellant.
Nos. 87-2536, 87-2539.

United States Court of Appeals,

Tenth Circuit.
Nov. 29, 1989.

Robert A. Nance (Robert H. Henry, Atty. Gen. of Okl., and John

Galowitch, Asst. Atty. Gen. of Okl., with him on the briefs), Chief,
Federal Division, Asst. Atty. Gen. of Okl., for defendant-appellant.
Judith A. Gran (Louis A. Bullock, and Patricia Bullock, Tulsa, Okl.,
Raymond Yasser, of the University of Tulsa, Tulsa, Okl., Frank J. Laski,
and Timothy M. Cook, of The Public Interest Law Center of Philadelphia,
Philadelphia, Pa., and Allen Mitchell, Sapulpa, Okl., with her on the
briefs), The Public Interest Law Center of Philadelphia, Philadelphia, Pa.,
for plaintiffs-appellees.

Before HOLLOWAY, and Chief Judge, MOORE and TACHA, Circuit

Judges.
TACHA, Circuit Judge.

James Borren, former superintendent of the Hissom Memorial Center, a state

institution for the mentally retarded, appeals the district court's order denying
his motions for summary judgment or a protective order in two 42 U.S.C.
section 1983 actions brought on behalf of Scott Furman Maxey and Joseph
Donald Cole ("residents"), two former residents at Hissom. Borren bases his
appeal on the district court's purported rejection of his qualified immunity
defense. We affirm in part, reverse in part, and remand for further proceedings.

I.
2

The residents filed amended complaints on December 20, 1985, which alleged
numerous violations of their constitutional, statutory and common law rights,
including the rights to personal safety, freedom from harm, freedom from
excessive restraint, adequate medical care, and minimally adequate habilitation.
Both complaints alleged that Borren was the superintendent of Hissom during
part of their residency and that he exercised general supervision over the
complex.

On January 28, 1986, Borren moved to dismiss the residents' section 1983
actions, arguing that the residents had not adequately pleaded his "personal
participation" in the wrongs alleged to have occurred. Borren also argued that
the alleged wrongs in the amended complaint were not deliberate violations of
the residents' constitutional or other rights and that the complaints alleged only
"negligent" conduct. The district court denied Borren's motion to dismiss.

One year later the residents sought to depose Borren, who refused to appear.
On January 26, 1987, Borren filed a motion for protection from discovery and a
motion for summary judgment on the grounds of qualified immunity. In an
affidavit accompanying his motions, Borren denied the allegations of the
complaint, stating that to his knowledge (1) no violations of constitutional or
other rights had occurred; (2) if any violations had occurred it was without his
personal participation; (3) the care provided to the residents was based on the
professional judgment of the Hissom staff; and (4) such care was "consistent
with staffing and funding levels." The residents filed a brief in opposition to the
motions, but did not file affidavits in support of their brief opposing summary
judgment. The residents also moved to compel discovery. Hearings on the

motions were referred to a magistrate.

5

The magistrate heard argument on these motions in a hearing on April 8, 1987.

The magistrate recommended to the district court that Borren's motions for
summary judgment and protection from discovery be denied and that the
residents' motion to compel discovery be dismissed as moot. At the hearing, the
magistrate observed:

6 the interests of fairness I think I have to give the [residents] some opportunity to
[I]n
come up with an evidentiary basis in form usable for summary judgment purposes.
Summary judgment Rule 56 expressly contemplates the use of depositions. It
permits the use of affidavits and here without any opportunity at all to take
depositions or to proceed with other methods of discovery, I think it would be
improper to grant this motion for summary judgment. However, in saying that, I am
going to expressly say that I have absolutely no intention of limiting [Borren] from
bringing or reurging a motion for summary judgment at that point where a sufficient
amount of discovery has been conducted and certainly I am not going to limit the
reurging of such a motion at that point where discovery is entirely complete.
7

The magistrate also noted that he would consider protective orders if discovery
became abusive or overly broad. The district court adopted the magistrate's
recommendation over Borren's objections, and this appeal followed.

II.
8

The issue presented by this appeal is whether the magistrate's recommendation,

adopted in the district court's order, denying Borren's motions for summary
judgment or a protective order, impermissibly infringed Borren's qualified
immunity interests, entitling him to an appeal of right to this court under the
doctrine of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411
(1985). We hold that the order did not conclusively and finally deny Borren's
entitlement to qualified immunity, but merely deferred that issue pending
development of a sufficient factual record. The order did infringe Borren's
immunity interest in freedom from overly broad discovery, however, by failing
to limit discovery to the issue of qualified immunity.

In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985),
the Supreme Court examined the appealability of denials of qualified immunity.
The Court held that denials of immunity were appealable under the collateral
order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69
S.Ct. 1221, 93 L.Ed. 1528 (1949), because the "entitlement [to qualified
immunity] is an immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (emphasis
in original). The Court also found that denials of qualified immunity satisfied
the other criteria of the collateral order doctrine, specifically the "conclusively
determine the disputed question" criterion and the "separable from, and
collateral to" the merits criterion. Id. at 527-30, 105 S.Ct. at 2816-18 (quoting
respectively Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454,
2457-58, 57 L.Ed.2d 351 (1978), and Cohen, 337 U.S. at 546, 69 S.Ct. at 122526). The Court reasoned that a denial of qualified immunity is conclusive
because the court is deciding either that (1) the defendant violated clearly
established law and is not entitled to immunity, or (2) that if the facts are as
asserted by plaintiff, defendant is not immune. Id. 472 U.S. at 527, 105 S.Ct. at
2816. In either situation, appealability is proper because "the court's denial of
summary judgment finally and conclusively determines the defendant's claim
of right not to stand trial on the plaintiff's allegations." Id. (emphasis in
original).
10

This circuit recognizes a third situation in which a defendant is entitled to

appeal an order denying qualified immunity: where the trial court denies
qualified immunity "grounded upon a finding that disputed material facts exist
in the case." DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d
714, 719 (10th Cir.1988). This result flows from the principle that qualified
immunity is an entitlement not to stand trial. A finding of disputed material fact
defeats the purpose of qualified immunity because its effect, if erroneous,
would be to compel the official to stand trial in derogation of his or her
immunity. Together these three categories of permissible appeals cover most
situations where a defendant's immunity interest in avoiding the burdens of trial
might be impermissibly infringed.

11

Borren's situation does not fall within these three categories of appealable
denials. The magistrate did not "finally and conclusively" deny Borren's
motions for summary judgment and a protective order based on qualified
immunity; the magistrate specifically stated at the hearing that Borren was free
to reurge his motions at any time. Nor did the magistrate determine that there
was a disputed question of material fact requiring trial. Instead, the magistrate,
and presumably the district court in adopting the magistrate's recommendation,
temporarily denied Borren's motions to allow the parties to develop an
adequate factual record on which to resolve Borren's immunity claim.

12

Borren contends that Mitchell establishes qualified immunity as an immunity

from discovery and that the district court's order foreclosed Borren's immunity
to discovery. We disagree. The language in Mitchell does not sweep so broadly.

Mitchell itself recognizes that there will be times when discovery is proper:
13
Unless
the plaintiff's allegations state a claim of violation of clearly established law,
a defendant pleading qualified immunity is entitled to dismissal before the
commencement of discovery. Even if the plaintiff's complaint adequately alleges the
commission of acts that violated clearly established law, the defendant is entitled to
summary judgment if discovery fails to uncover evidence sufficient to create a
genuine issue as to whether the defendant in fact committed those acts.
14

Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (citation omitted). This language
recognizes that discovery is permissible where the plaintiff adequately alleges a
violation. We agree with the Fifth Circuit that:

15
Harlow
[v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ],
Mitchell, and Jacquez [v. Procunier, 801 F.2d 789 (5th Cir.1986) ] make clear that
qualified immunity does not shield government officials from all discovery but only
from discovery which is either avoidable or overly broad. Discovery designed to
flesh out the merits of a plaintiff's claim before a ruling on the immunity defense or
discovery permitted in cases where the defendant is clearly entitled to immunity
would certainly fall within this category. Immediate appeal would lie from these
orders because Harlow, Mitchell, and Jacquez require that immune defendants be
exempt from avoidable, burdensome pretrial matters.
16

Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir.1987). We also agree that

17
Discovery
orders entered when the defendant's immunity claim turns at least
partially on a factual question; when the district court is unable to rule on the
immunity defense without further clarification of the facts; and which are narrowly
tailored to uncover only those facts needed to rule on the immunity claim are neither
avoidable or overly broad. Such orders are not immediately appealable.
18

Id. at 507-08. Borren's immunity claim fits squarely within this rule of
permissible discovery.

19

Borren, in his motion to dismiss, challenged the residents' complaint as not

stating a claim of violation of clearly established law. That motion was denied
and Borren chose not to appeal. The denial of the motion to dismiss foreclosed
Borren's claim of immunity from all discovery. The residents alleged a
violation of clearly established law adequate to state a claim for relief, thus
entitling them to discovery under Mitchell and to discovery on the fact-specific
immunity claim under the rule in Lion Boulos. By choosing not to appeal the
district court's denial of the motion to dismiss, Borren waived his right to object

to discovery limited to the issue of his fact-specific qualified immunity claim.

20

The magistrate's recommendation that Borren's motion for summary judgment

on the basis of qualified immunity be denied was not a conclusive
determination of Borren's entitlement to immunity. The magistrate explicitly
stated at the hearing that he would allow Borren to reurge his motions based on
qualified immunity after some discovery had been completed. The magistrate
recommended that Borren's motion be denied because he determined that
additional facts were needed before a ruling on Borren's qualified immunity
claim could be reached and that the residents were entitled to at least some
discovery. We cannot say that the magistrate's recommendation or the district
court's order adopting the recommendation was in error. The substantive record
in this case consists only of the pleadings and Borren's affidavit, which merely
denies the allegations in the complaint. This record is inadequate to determine
Borren's fact-specific claim of qualified immunity.

21

The district court's order adopting the magistrate's recommendation is thus akin
to the nonappealable discovery orders discussed by the Fifth Circuit in Lion
Boulos when the "defendant's immunity claim turns at least partially on a
factual question." Lion Boulos, 834 F.2d at 507-08. Like Lion Boulos discovery
orders, the district court's denial of the summary judgment motion did not
conclusively determine Borren's immunity but merely deferred final
determination.1

22

The only remaining justification for considering this appeal would be if the
discovery permitted by the district court were to exceed that "narrowly tailored"
to the question of qualified immunity. While the magistrate stated at the
hearing that he would grant protective orders if discovery became abusive or
overly broad, we cannot determine on this record if the district court's order
included that restriction. Similarly, we cannot determine on this record whether
the magistrate's statement was intended to limit discovery to the issue of
qualified immunity or to prevent abusive discovery practices generally. Given
this uncertainty in the record and the policy interest in deferring discovery on
the merits until after the question of qualified immunity is resolved, we hold
that the district court's order did not adequately limit permissible discovery to
the question of qualified immunity. We thus have jurisdiction over this appeal
and remand for the entry of an appropriate protective order to protect Borren's
immunity interests before discovery is permitted to continue. Both Borren's
immunity interests and the residents' legitimate interest in limited discovery on
the qualified immunity issue can be accommodated in this fashion.

III.

23

We have jurisdiction over this appeal because of the impermissible

infringement on Borren's immunity interest in freedom from overly broad
discovery. We determine that the district court's order denying summary
judgment did not conclusively determine Borren's entitlement to qualified
immunity. We also find that there is an inadequate basis in the record for
determining Borren's entitlement to qualified immunity. Therefore, we
REVERSE the denial of a protective order and REMAND with directions to
limit discovery to the qualified immunity issue. Each party will bear its own
costs in this appeal.

We recognize Borren's contentions that the complaint did not meet the
requirements of Fed.R.Civ.P. 11, and that the plaintiffs did not comply with
Fed.R.Civ.P. 56(f). Because we have no jurisdiction over the denial of the
motion for summary judgment, we do not reach those issues